We’re facing an epidemic of rape in the United States, and the costs to individual victims and society as a whole are enormous. Based on national victimization surveys, somewhere between 1 in 5 and 1 in 3 women will become victims of an attempted or completed rape at least once in their lifetime (in my circle of friends and acquaintances that number is closer to 1 in 2). The annual victim costs are estimated at a staggering $127 billion (not including child sexual abuse). That’s substantially higher than any other crime. At least 80% of rape survivors suffer from chronic psychological and/or physical conditions as a result of being sexually assaulted. Rape survivors also face a significantly elevated suicide risk: 600% higher than victims of other crimes and 1300% higher than non crime victims. Additionally, the omnipresent threat of rape limits the freedom of ALL women and prevents us from participating in the world as equals.
Yet only a small percentage of rapes are reported and of those that are reported, few end in a conviction. This means that rapists are free to go on raping, creating more victims and destroying more lives.
The rape culture myths addressed in my last post have a lot to do with the low reporting and conviction rates for rape. So does this:
The law presumes women old enough to legally have sex to exist in a state of perpetual consent. Unless you are able to prove beyond a reasonable doubt–a very high standard–that you did not consent to sex, the law assumes that whatever dude came along and forced himself on you had the right to do so.
So you’ve been raped. Being a “good” rape victim, you report the attack to police right away and submit to an agonizing examination of your body and every orifice in the hope that forensic specialists will find your attacker’s semen or other physical evidence. And they do! Congratulations, you have just ensured a consent defense (unless, of course, your attacker decides to plead guilty).
What I’m proposing is that we make a small but important change to the law by making consent an affirmative defense in rape cases. I’ll explain what that would mean and how it would work in a moment. First, though, let’s take a look at the three possible defenses in rape cases, shall we?
First up, we’ve got the “wrong guy” defense. In this type of rape case, the defendant will deny having had any sexual contact with the victim. The defense may not dispute that the victim was raped, but argues that the cops caught the wrong guy. For obvious reasons, this type of defense is most common in stranger rapes, though it is sometimes used in cases where the perpetrator is a very casual acquaintance or where the victim wasn’t able to get a good look at her rapist but believes he is someone she knows.
When you read about guys freed after spending X number of years behind bars wrongfully convicted of rape, it’s always this type of case. In fact, Peter Neufeld from The Innocence Project has said that in every rape case where they freed a wrongfully convicted man through DNA testing there was a real rape victim also denied justice.
This type of defense would NOT be affected by my proposal.
Second, we’ve got the similar but not identical “I didn’t have sex with that woman” defense. As in the previous type of case, the defendant will deny having had sexual contact with the victim, but he may not deny having been with the victim or at least knowing the victim. In other words, it’s not so much that he’s claiming to be the wrong guy as that she is either mistaken (usually as a result of being unconscious or heavily intoxicated) or lying about having sexual contact with him.
This type of defense would NOT be affected by my proposal.
Finally, there’s the consent defense. Here, the defendant admits to having sexual contact with the victim, but claims she didn’t object (enough). Many people believe that this type of defense is seen predominantly in so-called date rapes. Not so. The consent defense rears its ugly head whenever there’s physical evidence proving sexual contact between the defendant and the victim. And because forensic technology is advancing at a rapid pace, we’ll be seeing more rapists rely on the consent defense than ever before.
A victim who’s a total stranger, a victim who was tortured or beaten (hey, she “liked it rough”), a victim who ended up dead–none of this precludes a consent defense. And because women exist in a state of perpetual consent, it’s up to us to prove, beyond a reasonable doubt, that we didn’t consent. It’s no wonder then that rape prevention in this country consists of telling women how not to get raped (hint: it usually involves limiting your freedom and increasing your dependence on dudes) instead of telling men not to, you know, rape us.
But what if women weren’t presumed to exist in a state of perpetual consent? What if consent was an affirmative defense in rape cases?
Affirmative defenses are sometimes also known as justification defenses. The defendant is essentially saying, “I did it, but I’m not criminally liable because I was justified in doing it.” Self-defense is probably the best known example. For instance:
Let’s say Fred tries to rape me and I hit him over the head with a tire iron. Fred goes to the emergency room where doctors inquire about the source of the huge gash on his head. He tells them what I did, omitting the part where he tried to rape me, and they call police. If police don’t believe my side of the story (let’s say Fred is a fine upstanding citizen and I’m a drug-addicted prostitute), I could find myself charged with felony assault or worse. My defense will be that I was justified in hitting Fred with the tire iron because I was acting in self-defense.
Now, here’s the thing: Because self-defense is an affirmative defense, it will be up to me to prove that I was justified in hitting Fred because he was trying to rape me. Fortunately the standard of proof is generally lower than “beyond a reasonable doubt” when the defendant asserts an affirmative defense. So I’ll be okay as long as I can prove that Fred was attacking me (and that his attack justified my actions) by a preponderance of the evidence.
I’m proposing that the same standard apply when consent is asserted as a defense to rape. However, while the victim is currently in the position of having to prove beyond a reasonable doubt that she did not consent, the defendant would only need to prove that he had consent by a preponderance of the evidence.
I have no illusions that this change would single-handedly eliminate our low-reporting-and-conviction-rate problem. It will still be necessary to fight rape culture with its pernicious victim blaming and countless myths and misconceptions about sexual assault. But it would give rape victims–particularly those who’ve gone through the nightmare of a physical examination post-rape only to have their attacker utter the magic words “she consented!”–a better chance than they have now.
Most importantly perhaps, this change would put rapists on notice and go a long way toward shifting some of the burden to prevent rape where it belongs: the perpetrator. If you’re in the habit of engaging in predatory sexual behavior, targeting women who are too intoxicated or intimidated to give meaningful consent, you’ll probably want to alter your behavior. And if you’re the kind of guy who’s terribly concerned about potential “misunderstandings” leading to “false” rape accusations, there’s a simple solution for you: Make sure all your sexual partners are really consenting. Not grudgingly, but enthusiastically!
* Throughout this post I refer to rapists as male and rape victims as female because that accurately describes the vast majority of rapists and their victims. That said, not all victims are female and not all perpetrators are male, and the points made in this post apply to all sexes and sexual orientations.